The Ninth U.S. Circuit
Court of Appeals has agreed to decide en banc whether the city and county of San Francisco violated the
Establishment Clause by passing a resolution that the plaintiff said was
“anti-Catholic.”

Chief Judge Alex
Kozinski, in a brief order, said that a majority of the court’s nonrecused
judges had agreed to en banc review in Catholic League for Religious and
Civil Rights v. City and County of San Francisco, 06-17328.

The case deals with a
non-binding resolution criticizing a Vatican official’s edict that Catholic social services
agencies in the local archdiocese not place children with same-sex couples for
adoption.

The panel affirmed U.S.
District Judge Marilyn Hall Patel’s dismissal of a suit by the Catholic League
for Religious and Civil Rights against the city and individual supervisors.

The 2006 resolution was
spawned by a directive from Cardinal William Levada, head of the Congregation
for the Doctrine of the Faith at the Vatican, which the Catholic League described in its
complaint as the body responsible for maintaining “faith and morals throughout
the Catholic world.”

The congregation was
responsible for a 2003 statement, which the supervisors did not mention in
their resolution but which the league referred to in the complaint, which says
that allowing gays to adopt “would actually mean doing violence to these
children.”

‘Insult’ to San
Franciscans

The resolution declared
that it was “an insult to all San Franciscans when a foreign country, like the
Vatican, meddles with and attempts to negatively influence this great City’s
existing and established customs and traditions such as the right of same-sex
couples to adopt”; that the church had adopted “hateful and discriminatory
rhetoric”; that it had been “defamatory” towards same-sex couples by suggesting
they would harm children; and that Levada was “ a decidedly unqualified
representative of his former home city, and of the people of San Francisco and
the values they hold dear;” and resolved:

“That the Board of
Supervisors urges Cardinal William Levada, in his capacity as head of the
Congregation for the Doctrine of the Faith at the Vatican (formerly known as
Holy Office of the Inquisition), to withdraw his discriminatory and defamatory
directive that Catholic Charities of the Archdiocese of San Francisco stop placing
children in need of adoption with homosexual households.”

The league alleged that
the resolution, by its content and tone, violated the Establishment Clause by
making hostility to the Catholic religion an official policy of the city. It
asked for nominal damages and an injunction requiring the city to repeal the
resolution and barring it from adopting similar pronouncements in the future.

Patel, however, applied
the Supreme Court’s Lemon test for an Establishment Clause violation and
found that the complaint did not state a cause of action. She held that the
resolution had a secular purpose of promoting same-sex adoption, did not have a
religious purpose or a primary effect of expressing hostility towards
Catholicism, and did not excessively entangle government and religion.

While the church views
same-sex adoption as a religious issue, she said, San Francisco views it as “a secular
dimension of the City’s culture and tradition that the City believes is
threatened by the specific directive issued to the Archdiocese.” The city, she
said, was entitled to enact the resolution for the secular purpose of fostering
its non-discrimination policies.

Judge Richard A. Paez,
writing for the Ninth Circuit in June of this year, agreed.

Paez acknowledged that
the city’s rhetoric was harsh, but said that fact did not preclude a conclusion
that the resolution had a secular purpose.

The enactment, he said,
must be placed in the context of San Francisco policy, which has consistently supported
equality for gays and lesbians, and protection for same-sex couples in all
walks of life, a policy with which Levada’s pronouncement was at odds. The fact
that the resolution was passed within days of the directive, he said, also must
be considered in determining what the supervisors’ purpose was.

Objective Observer

“Keeping in mind the
context in which the Resolution arose, the objective observer would conclude
that the Board’s purpose in adopting the Resolution was to respond to a public
action that would affect both its gay and lesbian constituents, as well as the
children in the City and County’s jurisdiction,” the judge wrote. “The Board’s
focus was on same-sex couples, not Catholics.”

Paez cited American
Family Association v. City and County of San Francisco, 277 F.3d 1114 (9th
Cir. 2002), which rejected a challenge to resolutions blaming the “Religious
Right” and its denunciations of homosexuality for the “oppression” of, and
violence against, gays and lesbians.

The judge also rejected
the contention that by criticizing a specific religious directive, the board
was excessively entangling itself with religion. He distinguished a Second
Circuit ruling striking down a New York law attempting to regulate the sale of kosher food.

The court in that case
noted that there are disagreements between Orthodox and non-Orthodox Jews as
what qualifies specific products to be labeled kosher. The state, the court
held, had intruded into those disagreements by passing a law that adopted the
Orthodox position.

This is not what San Francisco did by passing the
resolution, Paez said, because the non-binding resolution did not endorse one
strain of Catholic belief over another, or intervene in the church’s internal
affairs.

Senior Judge Procter Hug
Jr. concurred in the opinion.

Judge Marsha Berzon
concurred separately, emphasizing that the resolution was “linked to no
affirmative governmental regulation nor displayed in any continuing fashion in
any public location.”

The concurring jurist
expressed sympathy for the view of Senior Judge John T. Noonan, who dissented
in American Family, that “the Constitution assures religious believers
that units of government will not take positions that amount to the
establishment of a policy condemning their religious belief,” and suggested
“resolutions such as the ones in American Family and the one in this
case are near—if not at—the line that separates establishment of such a
policy.”

The line was not
crossed, Berzon opined, because the city did nothing “more intrusive and
permanent” than pass a non-binding resolution.

“So, for example, a
pervasive public campaign by a city to condemn Jews for not shopping on
Saturday or Muslims from observing Ramadan because of the effect on the economy
would probably trigger Establishment Clause concerns not here present,” she
wrote.